WolfeNotes.com

Murphy A Huge Disappointment On Climate And Environment

The Gov.’s Rhetoric Is Belied By The Record

The Gov. Is Batting Just 0.119 (5 for 42)

I just heard NJ Gov. Phil Murphy straight up claim he had the strongest environmental record in the country. (The Gov. was interviewed on David Cruz’ “Chatbox” show – watch at time 8:20.)

The Gov. made that highly misleading and outright false claim in response to a viewer’s criticism of his support for NJ Turnpike expansion and alleged that he was “tripling down” on new fossil infrastructure. The Gov. took exception and called the premise of the question “ridiculous”, followed by an arrogant laugh. The Gov. then cited his accomplishments on offshore wind, solar, and environmental justice.

Well, the laugh is on Gov. Murphy.

He must believe his own spun press releases and the environmental cheerleaders he funds.

New York State is running circles around his environmental record, particularly on climate.

For example, NY has legally binding, enforceable, and funded climate goals (for greenhouse gas emissions reductions and renewable energy capacity) and NY State is embarked on a comprehensive public planning process to implement those goals. NY is closing nuclear plants (Indian Point). NY regulates all GHG emissions sectors and protects the carbon storage and sequestration values of forests.

In contrast, NJ’s Global Warming Response Act sets toothless, voluntary, aspirational goals. Gov. Murphy’s Executive Orders are not enforceable and serve essentially as press releases. NJ relies for funding on the pitiful RGGI emission allowance revenues and Murphy has diverted hundreds of millions of Clean Energy Fund revenues to other purposes. DEP carbon dioxide regulations (which apply only to a small portion of the power sector) set weaker standards than what the private market already meets and those standards are totally unrelated to the GWRA goals. BPU Energy Master Plan goals and programs require case by case implementation and are limited by cost tests and legal caps. Murphy provides $300 million per year in nuclear subsidies, over $1 billion so far. Murphy’s wind program relies on huge corporate subsidies, natural gas backup power, and is experiencing delays and cost over-runs that raise questions of economic feasibility. Solar installed capacity has fallen short of projections and Murphy’s solar legislation is stalled and it relies on a complex solar credit scheme from out of State renewable power generators. Huge subsides to nukes and caps and delays on solar – heck of a job! And NJ DEP is logging state forests based on sham slogans.

But aside from a State by State comparison, the Murphy environmental record is weak by NJ standards and historical achievements and expectations of the public.

Murphy was faced with a huge challenge after 8 years of Gov. Christie’s neglect and rollbacks.

I was involved in a similarly challenging situation upon returning to work for the McGreevey DEP Commissioner in 2002, after 8 years of Christie Whitman’s “Open For Business” environmental disaster. McGreevey Commissioner Brad Campbell’s first move – and my first project assignment – was to conduct a Department-wide “Vulnerability Assessment” to get all the skeletons out of the closets and prepare a public “Honest Baseline” report documenting that challenge (a smart move by Campbell not only to set the Whitman record straight and define the policy reform agenda, but also to avoid being blamed for the Whitman policies and mistakes in the pipeline).

But Gov. Murphy did nothing remotely like that. His approach was essentially to maintain continuity at DEP. Examples:

1. Murphy’s initial DEP Commissioner Catherine McCabe was weak and ineffectual and didn’t last long. Murphy replaced McCabe with Commissioner LaTourette, a former corporate lawyer who represented large polluters and has extensive conflict of interest ethical challenges. Gov. Murphy actually had the gall to call LaTourette an “Erin Brockovich” public interest lawyer!

2. Shamefully, his DEP has failed to reverse any of the Christie DEP regulatory rollbacks and budget cuts. Note: The Legislature effectively repealed the Christie DEP Highlands Septic Density Standard rollback, not DEP.]

3. From a policy perspective, DEP has done very little to respond to longstanding environmental problems and flawed DEP policies, weak regulations, lax enforcement (including the elimination of enforcement Division and consolidation of political control in Commissioner’s Office), and inadequate programs.

Perhaps worse, the Murphy DEP has cut back even further on production of annual performance reports on DEP’s various programs, forcing the public to conduct incredibly difficult website searches using DEP’s flawed databases. The Murphy DEP has expanded the abuse of the Open Public Records Act, particularly to deny public records under the “deliberative privilege” exemption, thereby throwing a blanket of secrecy over virtually all DEP staff work, Reports, and internal communications. The lights are out at DEP for the public (frustrating transparency and accountability), but the revolving door and back door are wide open for corporate interests to exploit.

For example, at the outset of the Murphy Administration (January 27, 2018), I outlined a comprehensive set of benchmarks to measure DEP’s performance.

I laid out 42 specific actions DEP needed to take to begin moving the ball forward (reversing the Christie DEP rollbacks was the first step, see:

• NJ Gov. Murphy Faces A Huge Challenge Reversing Christie Environmental Dismantling And Restoring DEP Integrity and Leadership

I just quickly reviewed that list and DEP’s performance has been pathetic. DEP only partially addressed 4 or 5 of the 42 actions, which I repeat here so readers can see for themselves that the Gov. is full of crap:

Murphy DEP Claimed They Lack Authority To Protect The Public From Flooding

Following up on my criticisms of the huge holes in the Murphy DEP’s flood rules, I wrote today to demand that legislators close gaps in NJ flood related laws that DEP claims block science based protections.

I was appalled by DEP’s excuses that they lacked legislative authority to regulate, particularly because DEP has never testified to the legislature to explain these gaps and request that bills be introduced to close gaps in law that limit DEP’s ability to protect public health, safety, welfare and the environment.

I previously worked in NJ DEP’s Office Of Legislation for 4 years (1990-1994) and for the Commissioner (2002 – 2004), so I understand how DEP works with friendly legislators when the Gov. or DEP seek to pass a bill to authorize DEP to adopt regulatory protections.

I also know when they don’t want to open a controversial issue to legislative review.

Here’s my letter to Chairman Smith, Vice Chair Greenstein and Assemblyman McKeon – these 5 issues are critical and must be addressed legislatively if the Gov. and legislature are serious about reducing flooding risks.

Perhaps the Gov.’s cheerleaders in the environmental community will start spending time and resources on real advocacy work and back these amendments, instead of crafting quotes for Gov. Murphy and DEP press releases:

Dear Chairman Smith, Senator Greenstein, and Assemblyman McKeon:

In reviewing DEP’s adoption document and response to public comments on the new Flood Hazard Act rules, I came across DEP claims regarding restrictions on their legislative authority on critical environmental, public health, safety, and welfare impacts and risks of flooding. (FYI, here is a link to DEP’s adoption document:

https://dep.nj.gov/wp-content/uploads/rules/adoptions/adopt-20230717a.pdf

I am writing to urge that you introduce legislation to address, among other things, the following legislative authority issues:

1. Repeal DEP restriction on DEP authority to the 100 year flood

In response to many public comments stating that the current 100 year flood design storm statistic (rainfalls, runoff, floodplain elevation) does not reflect the best available current science and urging DEP to adopt the 500 year storm value, the DEP claimed that their legislative authority is limited.

In response to comment #678 on page 319, DEP wrote:

“The Department did not utilize the 500-year flood zone because the basis of jurisdiction under the Flood Hazard Area Control Act is the 100-year flood plain. See, e.g. N.J.S.A. 58:16A-55.2.”

I urge you to revoke this 100 year basis for jurisdiction and update current law to reflect the best available science.

2. Provide DEP authority to compel infrastructure upgrades

In response to public comment #367 (by NJ BIA) on page  172 DEP wrote:

“The Department cannot compel individuals to retrofit or reconstruct stormwater management systems unless improvements are being proposed by their owners.”

Obviously, DEP must have authority to address critical risks to public health safety and welfare and the environment, e.g. if a dam were at imminent risk of failure, DEP has emergency authority to compel corrective action.

I urge you to authorize DEP to compel upgrades to existing infrastructure asa necessary to protect public healthy, safety, welfare and the environment, based on the best available science.

3. Repeal the statutory “Right to rebuild”

The Flood Hazard Area Control Act and CAFRA provide a “right to rebuild” storm damaged properties. This has contributed to NJ’s nationally leading repeat storm damage claims.

I urge you to revoke this right to rebuild provision.

For CAFRA, see former Senator Barnes’ bill, S62 (2014 session):

https://pub.njleg.gov/bills/2014/S0500/62_T1.PDF

For FHACA, see:

NJSA 58:16A-55.1. Repair or rebuilding of lawful preexisting structure within flood hazard area

4. Authorize DEP To Regulate Existing Development

DEP continues to fail to consider existing land use and land cover – including existing development – in regulating water quality, stormwater, and flooding impacts and risks.

It is impossible to adequately manage these critical environmental, public safety, health and welfare issues while continuing to ignore the elephant in the room that is generating the majority of the impacts and risks.

5. Authorize DEP to integrate the State Plan

As you may know, Gov. Florio (correction!!) issued Executive Order #114 that directed DEP to integrate the State Plan in DEP policies, programs, plans, and regulations.

Unfortunately, that Order was never implemented.

In the flood rule adoption, DEP totally abandoned land use considerations in DEP regulations. DEP wrote:

“The adopted rule does not restrict development but rather requires due consideration of flood risk and resilient project design for regulated activities, including new development and reconstruction.” (DEP response to comment, p.97).

This is poor public policy and a reversal of decades of State Planning and DEP policy.

I strongly urge you to restore DEP’s focus on regulating land use and integration of the State Plan in DEP policies, programs, plans, and regulations.

I appreciate your timely and favorable consideration and am available to provide additional information.

Respectfully,

Bill Wolfe

Current Rainfall And Flood Elevations Already Exceed DEP’s Obsolete Standards

DEP Failed To Consider And Restrict Land Use In Flood Hazard Areas

Lambertville, NJ. Along Swan Creek – Irene flooding (8/28/11) (Bill Wolfe)

The DEP openly admits that they have abdicated and violated statutory mandates (“shall”) to study, delineate flood hazard areas based on best available science, and regulate land use and development.

Gov. Murphy touted DEP’s adoption of controversial flood regulations in a typical over-the-top press release, with praising quotes from friendly environmentalists designed to mislead the public and the press.

As usual, the press fell for it.

So, let’s drill down on a few of DEP’s own formal statements about those rules, to highlight some of the significant flaws I’ve previously flagged, e.g. see:

• Murphy DEP Finally Proposes Inland Flood Rules – Current Rainfall, Stormwater Volumes, & Flood Elevations Already Exceed DEP’s New Standards

• The New Orleans Experience With Extreme Storm Design Standards Is Instructive

• Murphy DEP Signals That NJ Is About To Repeat The New Orleans Katrina Debacle

Let’s start with a fundamental issue of DEP’s role in planning and regulating land use (a preventative approach, versus what I’ve criticized as DEP’s “engineering” based risk mitigation slogan based “myth of resilience” approach).

In responding to public comments, DEP wrote:

The adopted rule does not restrict development but rather requires due consideration of flood risk and resilient project design for regulated activities, including new development and reconstruction. (DEP response to comment, p.97).

Did you get that? Repeat: “The adopted rule does not restrict development”.

The Murphy DEP has now abandoned even any pretense of sound land use planning and regulation and put the final nail in the coffin of the NJ State Development and Redevelopment Plan.

The Murphy DEP now has officially ended any attempts at integrating the NJ State Plan and land use issues in DEP regulatory programs, an enlightened planning and policy initiative that began with Gov. Florio’s 1994 Executive Order #114 and revived by Gov. McGreevey’s Highlands Act and failed “Big Map” initiative.

It’s over. The fat lady is singing.

And a former corporate lawyer now DEP Commissioner did it. So own that, Gov. Murphy and his cheerleaders.

The NJ Builders Association and real estate development lobby are cheering. (NJ Spotlight):

“While we still need to review the adopted rule in greater detail, we are pleased to see that the DEP listened to the concerns of the business and development community regarding the unfair application of new standards to projects that were previously outside the flood hazard area,” said Ray Cantor, a spokesman for the business group. “The changes that were made on adoption will allow numerous projects that have been designed, obtained financing, and received local approvals to now move forward, bringing affordable housing and economic benefits to the state.”

In terms of all the hype about considering climate risks and extreme weather, feel free to review my detailed demolition of that spin in the above highlighted post, see again:

• Murphy DEP Finally Proposes Inland Flood Rules – Current Rainfall, Stormwater Volumes, & Flood Elevations Already Exceed DEP’s New Standards

Here’s how DEP misleadingly and superficially summarized this detailed substantive criticism.

With respect to the DEP’s use of the obsolete 100 year flood statistic (buried in comment #678 on page 319):

678.COMMENT: There have been numerous “500-year” floods recorded. The proposed rule is based on an obsolete standard and a heightened 500-year storm standard should be implemented. (27)

RESPONSE TO COMMENTS 671 THROUGH 684: Knowing how flooding is expected to change in the future and that buildings and infrastructure being built today will be impacted by future flooding, the Department could not delay the Inland Flood Protection Rule until new mapping was produced. The Department did not utilize the 500-year flood zone because the basis of jurisdiction under the Flood Hazard Area Control Act is the 100-year flood plain. See, e.g. N.J.S.A. 58:16A-55.2. Therefore, it was necessary and appropriate for the Department to regulate to a projected 100-year flood plain, rather than a 500-year published flood plain map that relies on data that is backward looking.

Gov. Murphy and DEP have never gone to the legislature to recommend and request that this obsolete alleged restriction to the 100 year flood be repealed and replaced by a science based standard. Never.

Compounding this failure to seek science based legislative reforms to obsolete legislative standards, the DEP directly contradicted this alleged restriction to the 100 year flood in response to my comment criticizing their use of a 25% “safety factor”:

687. COMMENT: The 25 percent safety factor is insufficient to protect against the now heightened “500-year” severe weather events. (27)

Directly contradicting the alleged statutory restriction to the 100 year flood, the DEP here claims that they have discretion to determine the appropriate science based standard “in the judgement of the Department”. DEP also admits that they have land use powers that they refuse to implement and enforce: “the improper development and use”) (emphasis mine)

RESPONSE TO COMMENTS 685 THROUGH 690: The 25 percent factor of safety that the Department has added to its delineations and which is required by individuals utilizing Method 6 at N.J.A.C. 7:13-3.6, has been utilized since the 1970s as a means of approximating the effect that development has on the hydrologic conditions of a watershed. It is well known that new development and added impervious surface increases the volume of runoff that is received and ultimately conveyed by surface waters. While the Department’s SWM rules help to ameliorate the impact of this increased volume, the cumulative effect of development within a watershed can result in dramatic impacts to the peak rate of flow during flood events. Further, as noted in response to comment 655 above, N.J.S.A 58:16A-52a provides that, “the department shall study the nature and extent of the areas affected by flooding in the State… [and] shall adopt rules and regulations which delineate as flood hazard areas such areas as, in the judgment of the department, the improper development and use of which would constitute a threat to the safety, health, and general the welfare from flooding.” The 25 percent factor of safety discussed above, which has been used for almost 50 years in New Jersey, meets this requirement.

In this response, the DEP openly admits that they have abdicated and violated statutory mandates (“shall”) to study, delineate flood hazard areas based on best available science, and regulate land use and development.

So which is it? Does the law limit DEP’s flood protection regulatory authority to the 100 year flood, or does the law provide DEP with discretion to determine the flood standard required to restrict development that would “constitute a threat to the safety, health, and general the welfare from flooding”? Obviously, it’s the latter.

DEP similarly buried my land use criticisms in comment #622 on page 294: (I am commenter #27)

622. COMMENT: The commenter asserts engineering cannot be a sufficient solution to increasing severe weather and stormwater flooding hazards. Additionally, the commenter casts skepticism and doubt on resilience, particularly with how the Department has chosen to pursue rulemaking through a lens of resilience and not land use planning. Further the Department should analyze existing development and analyze retrofitting applications. (27)

Here’s how DEP responded to that criticism – DEP tacitly confirms my criticisms and openly admits that planning and land use are “beyond the scope of the rules” (emphases mine):

RESPONSE: The overall intent of the FHACA rules and of this rulemaking is to establish areas of the state where flooding is likely to occur and to help ensure that development and redevelopment within these flood hazard areas are designed and constructed to be safe for residents while not adversely impacting other properties. Flooding is a complex issue that requires a suite of strategies to effectively combat. While protective regulations are an important component in achieving this goal, comprehensive land use planning, additional infrastructure investment, targeted buyouts, and relocation and elevation of repetitively flooded structures, are all equally necessary. Such complementary strategies are beyond the scope of these rules, but can include targeted buyouts of repetitive loss structures under the Department’s Blue Acres program, flood mitigation funding through the FEMA’s Community Development Block Grant Mitigation Program, and flood mitigation projects through the U.S. Army Corps of Engineers.

 This post has already gotten too long and in the weeds (and we haven’t even talked about 1) grandfathering loopholes, 2) failure to address the so called “right to rebuild”, 3) failures to apply to all the existing development that is contributing to all the repeat flooding, and 4) repealing Christie DEP regulatory rollbacks.

Each one of these issues is a massive problem.)

I encourage reporters and all folks who want accurate information to read the entire DEP adoption document’s response to public comments.

Please don’t swallow the spin and lies of the Murphy DEP and their lame cheerleaders in the environmental community.

Corporate Business Community Coalition Blasts State Government Regulation

National Lobbyists Parachute Into Trenton

Multi-Billion Dollar Legal Settlement By 3M Provides Backdrop

Murphy DEP Hiding Under Their Desks

Like the proverbial tree falling in the forest without making a sound – although not reported by the NJ media outlets that have written scores of PFAS stories – last week, a cavalry of corporate power invaded Trenton to testify in opposition to a bill that would ban and require labeling of certain products that contain toxic “forever chemicals” PFAS.

For a set up story on that bill, S3177, the “Protecting Against Forever Chemicals Act”, see:

• NJ Legislators To Consider A Bill To Ban And Label Certain Products Containing PFAS “Forever Chemicals”

In a highly unusual move, both chemical industry and environmental groups imported out of state muscle to make their case.

This only happens on important precedent setting legislation.

The debate raged for an hour and a half – also a highly unusual event. You can listen to the testimony here, It begins at time 1:52:00.

Chairman Smith put the controversial bill up last, likely in hopes that any reporters present would have left the room. And in another unusual move, he then left the hearing and turned it over to vice-Chair Greenstein. I suspect this was no accident, as Senator Smith is a lawyer and received an undergraduate degree in chemistry and he’s obviously been barraged with the corporate lobbyists fire.

Before he left, Smith opened the testimony with a bang:

Our last item of business for the day, and the one that has received the most comments and inputs is our PFAS bill. …

I hope you’re watching what’s going on around the country. We just had the first settlement of PFAS [litigation] – it’s called the Stuart, Florida case (read the 3M $10 billion settlement). …. because of the cost of treatment of water in their water systems.

Ask yourself the questions: Why are the manufacturers of these chemicals willing to pay hundreds, and hundreds, and hundreds of millions of dollars if there’s not a big problem?

Boom!

But Smith failed to mention or probe the status of NJ’s pending PFAS lawsuits, as I suggested:

The status and role of the DEP PFAS lawsuits also need to be explored in detail (see this and this):

The Murphy DEP was a no show.

With a story this huge, where is intrepid NJ Spotlight reporter Jon Hurdle, who has written dozens of stories on PFAS?

The corporate attack on the bill was led by the NJ Chemistry Council and the Household and Commercial Products Assc. They were joined by NJ based corporate groups including the  NJBIA, NJ Chamber of Commerce, NJ Food Council, NJ SEED, the NJ Commerce and Industry Assc., the NJ Paint and Coatings Assc., and Honeywell.

It is rare that a named corporation – Honeywell – openly attacks an environmental bill. They almost always hide behind associations like the Chemistry Council, NJ BIA, or Chamber of Commerce.

The were joined by national DC based heavyweight, the American Chemistry Council (ACC). It is rare for the national corporate lobbyists to appear to testify in Trenton. That alone illustrates the high stakes.

The ACC actually had the gall to oppose legislation and regulation in favor of a “product stewardship” model, the discredited slogan for their failed “voluntary compliance” initiative that paraded under the Orwellian slogan “Responsible Care”.

Interestingly, the ACC testimony praised California Governor Newsom for vetoing a Californian bill in favor of pending lame EPA notification regulations. No doubt, that was pitched to fellow presidential aspirant Gov. Murphy and intended as a warning shot across the bow of corporate Democrats who pose as “green”.

But in typical misleading fashion, ACC failed to mention that Newsom signed legislation to ban PFAS is cosmetics and textiles. That kind of misleading testimony is typical, see:

• The Exxon PlayBook Has Been Deployed In NJ For Decades

The corporate lobbyists attacked everything from the science to what they claimed was an overly broad definition of PFAS and an attack on trade secrets and propriety corporate information.

The opposed State level legislation in favor of uniform (and weak) federal EPA regulations.

One national corporate player, the Orwellianly named “Sustainable PFAS Action Network” exposed major flaws in the bill by supporting the “source reduction” approach and provisions of the bill. As I wrote, they are NOT “source reduction”, they are sham:

3. Section 16 – Source reduction – Ongoing DEP regulatory program

The bill’s approach to “Source reduction” is inconsistent with and in conflict with NJ law, regulation, and policy pursuant to the Pollution Prevention Act and the Solid Waste Management Act (as amended by the Toxic packaging Reduction Act and Dry Cell Battery Management Act).

Both those laws address and establish a DEP regulatory program for toxics use reduction and impose obligations on the private sector and manufacturers.

The NJ corporate case was made by revolving door former DEP officials Ray Cantor (NJ BIA) and Dennis Hart (Paint & Coatings Assc.), who now serve as corporate whores.

The NJ environmental community was represented by the usual suspects, Environment NJ, Clean Water Action, and Sierra Club, and supplemented by colleagues from California, Maine, Minnesota, and national groups.

Not surprisingly, NJ Audubon, now led by a former Exxon Mobil “scientist”, was a no show as well. Perhaps that is why former head of NJA Gov. Affairs Eileen Murphy, who worked on the PFAS issues, recently resigned.

Like I said, I have not been working on these issues and am not up to speed on them and what other states are doing, but based on reading the bill and listening to the testimony, it seems clear that industry already has secured concessions to what is now a relatively weak bill, and they are mounting a full court press to either gut the bill entirely or kill it.

This debate provided no surprises, but I was disappointed if not surprised by the lack of NJ Spotlight overage .

This is another revealing example of their lame pro-business approach. Based on their reliance on corporate funders and corporate friendly foundations, they don’t cover high stakes corporate issues like this (Instead of covering it, today, Jon Hurdle did another story on Red Knot, following the recent prior NPR coverage. The NPR story relied heavily on former NJ DEP biologist Larry Niles, so not surprisingly NJ DEP escaped scrutiny).

I’ll predict this bill either quietly goes away, or is further amended to gut the bill and then buried by the Senate Budget Committee (Chaired by Sarlo) where all environmental bills go to die.

A Peek At The Cascades

We’ve made it to the Cascades!

Great campsite in Okanogan-Wenatchee National Forest just below Hart’s Pass – Slate Peak (see photos of what it looks like up top!).

Bouy is still hanging in there, but almost completely unable to use his back legs.

Curiously, unlike all the western streams and rivers flowing high with record snowmelt, the stream (offshoot of the Methow River) that kept us alive during the 117 degree extreme weather 2 years ago is not flowing at all. Bone dry. Check out how that stream looked in August 2021.

I thought that maybe it was dammed up to stop the diversion off the river and walked upstream a few hundred yards. Nope. The river is just flowing very low. I have no idea why – maybe this eastern side of the Cascades didn’t get the record snowfall, or maybe it’s all melted and runoff (there is no snow on the peaks I can see right now).

We’ll ask around and find out what’s up – curious that the stream would be flowing strong in mid August 2021 but bone dry in early June this year.

[Update: I spoke with several folks. I’m told that there was a very early and very warm spell, resulting in unusually rapid snowmelt that caused flooding. The snow is all gone more than a month early and river flows are way down as a result. There also was an unusually large number of slides. Concerns that drying out the forest this early will exacerbate wildfire risk later this summer.]

[End Note: The headline of this post is intentional snark.

In listening to various BBC or NPR news reports, I just learned that in addition to my (old) white, male, cis, hetero-normative privileges, I apparently enjoy other important privileges and suffer additional guilts.

These now include “thin body” privilege and the fact that I speak and write in “institutional language”. [Update: just heard I enjoy another privilege: “safety privilege”!]

I am so sick of the identity politics and culture wars. My goodness, I learned about the terms “cis” and “trans” 50 years ago in high school chemistry, terms that defined chemical bond structures.